James Boyle is the William Neal Reynolds Professor of Law at Duke Law School. He was among the authors that wrote a response to the Paradox of Open. In this piece, he reacts to Jan J. Zygmuntowski’s response to his original contribution
Jan Zygmuntowski has been kind enough to write a response to my essay Misunderestimating Openness. In that essay, I argued, among other things, that while Paul and Alek’s fascinating essay, The Paradox of Open, contains genuine and important insights (please read it to see what they are!), it is marred by the creation of a number of straw men, one of which was that the open movement was, from its beginning, characterized by techno-libertarianism, blind to the effects of private power and economic forces and naively optimistic about the power of network technology either alone, or coupled with open licensing, to deliver us to the promised land. I argued that this mischaracterization is consequential: not just because it is an inaccurate and unfair intellectual history, which it demonstrably is, but because it subtly skews the proposals for reform that they put forward. Jan makes a couple of fair and cogent criticisms of my essay but he doubles down and even extends the straw man claims in ways that I simply have to put right. In the process, though, I make some points that might be of general interest, both historically and theoretically.
Paul and Alek addressed their essay to the open movement, focusing particularly, though not exclusively, on Creative Commons-style licensing as an incarnation of that movement. Like them, in responding, I presumed a certain familiarity with the intellectual and scholarly history of both groups. That seems to have been a mistake. I also assumed, incorrectly, that my essay would be read against that shared background. That clearly did not happen, so it seems worth setting the record straight here, and while doing so, laying out an intellectual history of the open movement, or at least a few parts of it.
From Jan’s account you would gather that I, and the old-school open movement, were indeed naïve digital libertarians, that I/we don’t understand the nature of data or information, and have no grasp of commons-theory. (Damn! I shouldn’t have written all those books about it. Doh!) In particular, I don’t appreciate the contributions of Nobel Prize winner, Elinor Ostrom to that theory, and exaggerate the novelty of the work we were doing in developing it. That would be news to at least one perceptive person, writing 20 years ago about our 2001 conference on the subject.
The Duke Law School Conference on the Public Domain brought together, for the first time, an interdisciplinary group of leading scholars studying the increasing enclosure of the global information commons. … To direct attention to this evolving situation, James Boyle has called for the recreation of the public domain, drawing from the intellectual construct of the environment. “Like the environment,” he writes, “the public domain must be invented before it can be saved.” A greater depth of understanding of the public domain requires the concept to be more deeply analyzed and clarified. It is a logical step, therefore, to draw from the fruitful research and analytical methods applied to the study of common-pool resources (“CPRs”) and natural resource management.
Who was that insightful commentator? Somewhat inconveniently for Jan’s argument, it was Lin Ostrom (writing with Charlotte Hess). I had personally convinced her of the relevance her work had to the information space, and persuaded her, against her considerable reluctance, to write about the subject. But there are more errors of mine to be listed! I/we hew to a (neo-liberal, Thatcherite?) set of economic and political ideas which is blind to the deformations produced by private power and our economic structure, deformations sometimes compounded by open licensing. I don’t understand that privately constructed commons can have conditions put on them, which must have severely limited my work as one of the founding board members of Creative Commons when we were doing exactly that while writing the original licenses, aka sets of conditions. I also apparently think that data actually is oil – and thus a passive resource made of dead dinosaurs and prehistoric trees, presumably? – rather than using the idea of data as oil metaphorically to conjure up both its future economic centrality, and also the possible negative externalities attendant on its extraction. Finally, my ideas are so unoriginal they could have, or perhaps did, come from a chatbot. Since my views are on record starting in the early 1990’s, I must have had super-early access to ChatGPT. Who knew?!
Forget the straight-up insults. They shed more heat than light. Even leaving those aside, the sheer scope, and more importantly the dogged persistence of the mischaracterization indicates that it might be important to show how false it is for those who are new to the open movement. Persistently recurring mistakes and mischaracterizations are things scholars rightly focus on: their recurrence tells us a lot. I have many flaws, as does the open movement, but even the most cursory glance at the scholarly and historical record available on the open web shows that these are not among them. (The open movement says “you are welcome” for the open web, by the way. You very nearly didn’t get it and it was a close-run thing.) All these facts seem important. Not just as a matter of intellectual accuracy and personal fairness, though those values seem particularly precious at this historical moment, but as a matter of clear-eyed policy analysis. So let us look beyond Jan’s piece at two particular, and apparently enduring, myths.
For a claim which is demonstrably false, this one really has staying power. Alek and Paul center a lot of their discussion of the open movement on open licensing and, in particular, on Creative Commons. Thus it seems reasonable to ask, were the people who founded Creative Commons naïve digital libertarians? This is me, trashing digital libertarianism in a 1997 article that ended up getting a gratifying amount of attention.
I make the familiar criticism that digital libertarianism is inadequate because of its blindness toward the effects of private power, and the less familiar claim that digital libertarianism is also surprisingly blind to the state’s own power in cyberspace.
If you read the rest, you will be pretty clear on my views. Far more important than that, though, is the fact that the actual founder of Creative Commons – Larry Lessig – wrote the single most influential book criticizing technolibertarianism, and did so in 1999, well before the launch of Creative Commons. Larry asked me to be on the founding board and I am incredibly proud of the work we did. Can we agree on a simple rule? Call it Boyle’s Law #2. If the guy who actually created an organization makes his name as the most prominent critic of a particular view, and so did other members of the founding board, one has to stop claiming they held that view.
Yes, the open movement went far beyond Creative Commons, but think about the technolibertarian claim for a moment rather than parroting it. What do the people who devote their lives to setting up privately constructed commons – whether in software, or culture, or science – what do those people obviously not believe? Two things stand out. 1.) That technology alone will deliver the utopia. (Otherwise, why are their attempts necessary?) The open licensing movement is premised on the idea that we will have to engage in social and legal engineering to change the world so as to make that technology serve human needs. 2.) That assertions of individual liberty by themselves are adequate to achieve our goal. They are not. We need a community devoted to sharing. In other words, to be involved in the movement for open licensing is to reject both technological determinism and the idea that justice is simply a matter of the protection of individual liberty – the two defining features of technolibertarianism. I would respectfully suggest that if you go on claim otherwise, you ignore not only the historical record but logic.
What about John Perry Barlow, then? He is the person always cited on this issue. Of course Jan repeats the pattern, but that is so typical that it might be worthy of discussion. John Perry was a lovely man and a dear friend. I still feel the loss of his passing. Two points about him seem important, though. First, John Perry was deeply involved in digital civil liberties but played little or no role in the world of open licensing. He is therefore a really odd choice to personify that world. Secondly, those who invoke his ideas generally take a quotable fragment from the Declaration of Independence of Cyberspace and ignore everything else he did and said. That’s understandable in a journalist on a deadline, but scholars, or just people who care about accuracy, can do better. There are extensive, and very readable, scholarly discussions of his views freely available.
In the words of Cory Doctorow, (and you should really read the whole article if you care about digital activism: it is a superb primer on the subject):
When Barlow advocated for a free internet––“free” in all the usefully overlapping and ambiguous senses of that word––he wasn’t doing so because he lacked an appreciation of the risks of a monopolized internet, or an internet that was under the thumb of a repressive state. Rather, he did so precisely because he feared that a globe-spanning network of ubiquitous, sensor-studded, actuating devices that were designed and governed without some kind of ethical commitment, without the pioneering spirit of the early internet and its yeoman smallholders who defended it from those who sought to dominate or pervert it, that we would arrive at a dystopian future where the entertainment industry’s Huxleyism was the means for realizing the nightmares of Orwell. You don’t found an organization like the Electronic Frontier Foundation [which Barlow did] because you are sanguine about the future of the internet: you do so because your hope for an amazing, open future is haunted by terror of a network suborned for the purposes of spying and control.
Cory goes on to discuss John Gilmore’s famous quotation, “The Net interprets censorship as damage and routes around it” which is subject to a similar reductive and misleading reading.
“The Net interprets censorship as damage and routes around it” was a prescription as much as an observation. It was uttered in the context of a nascent internet whose technical caretakers disagreed on many ethical and technical points, but were united in a sense of civic duty to keep the technology open and universal and “free as in freedom.” Gilmore didn’t mean, “Stand down everyone, we’ve built a censorship-proof internet that will automatically maintain its integrity.” He meant, “To you, my comrades-in-arms who toil endlessly to make our balky, wonderful invention run, I say: the same measures that we take to re-knit our network when a technical failure tears holes in its fabric can be repurposed to resist censorship, to route around the nodes that have fallen under a censor’s thrall. Our shared civic mission, heretofore dedicated primarily to the technical task of preserving a forum for discourse, can and should be expanded to the political task of preserving that forum, and what’s more, the tactics that we have mastered so thoroughly for the former will serve us in the latter.”
In other words, these people arguing were not arguing naively that technology alone would deliver the promised land or that the state was the only threat. Rather, they were saying that we needed a politics of information, of civic engagement, an environmentalism of the mind, to preserve a public sphere against incursions that came from both state and corporation. In another fantastic article, Cindy Cohn puts a similar point in a different way, one that is centrally relevant to Paul and Alek’s ideas in Paradox, and to the phenomenon of straw men.
Since Barlow’s death, I’ve spent a lot of time trying to ensure that the straw men who have Barlow’s face taped to them don’t overshadow the actual man. The basic straw man story goes like this: Barlow was the leader of a band of naïve techno-utopians who believed that the Internet would magically fix all problems without creating any new ones. History has shown that the Internet didn’t solve all problems and created many new ones, so Barlow was a fool or worse. Pieces like this showed up periodically during his lifetime too. To be fair, the real Barlow definitely was an optimist and he loved all attention, positive or negative. You could argue that he sometimes pasted his own face on that straw man. But I think that this approach misses what Barlow was up to. Barlow wasn’t trying to predict the future; he was trying to invent it. Here’s what he wrote in response to one of those “straw men” articles in the Washington Post in 2015:
“I [ ] knew that we were building the most penetrating and total surveillance system that could be imagined, and I was no more comfortable with the Googles (which didn’t exist but predictably would) who would peer out through those All-Seeing Eyes than I was with an equally enhanced NSA, Chinese Government, or United States Cyber Command. However, just as Alan Kay said, “The best way to predict the future is to invent it,” I knew it’s also true that a good way to invent the future is to predict it. So I predicted Utopia, hoping to give Liberty a running start before the laws of Moore and Metcalfe delivered up what Ed Snowden now correctly calls “turn-key totalitarianism.” Which is now available to a number of secretive institutions, public and private (not that there’s a useful distinction.)”
So even when it comes to John Perry, who is a really odd person to invoke when discussing the open licensing movement, the story is more complex. Cindy, to her enormous credit, tries to capture that complexity and contradiction, acknowledging the times when the story fits, but showing its limitations. Others don’t bother. Again, I get it. History is complex. Subtle thinkers are complex. Reducing both to caricatures and straw men is convenient, but we should do better than that. In fact, we should be better than that.
When it comes to people like Lessig, or me, or – I would argue – the open licensing movement as a whole, the story is simpler and the straw man lacks any justification. Our work was – demonstrably – rooted in a critique of digital libertarianism, not a defense of it. Those who say otherwise are either unaware of the historical record or have chosen to disregard it. They also make a fairly basic logical error, because any open licensing movement implicitly rejects digital libertarianism’s two central tenets. [Please feel free to link to this essay for that point on any subsequent occasion when the claim is made. I am not naïve enough to believe it will end the misrepresentation, but it should at least force people to be more creative in wording it.]
I have spent most of my academic life writing about the commons and the theories behind it. There have been articles, so many articles, ironically one was in a book edited by Elinor Ostrom. I’ve written books, symposia, and newspaper articles on the subject. I have done it so tiresomely often that The Economist even commissioned me to explain why Garrett Hardin was wrong and Lin Ostrom was right. On another occasion, so did The Financial Times. I was happy to do so. Most of my non-academic activism and pro bono volunteer work has been with Creative Commons and Science Commons and its successors, both of which are built around the notions of a commons (look at the names?) with licensed limitations. (Otherwise it would be “Creative Public Domain.”) I am proud of that work. Thus, Jan’s argument induced two particular acronymic reactions, namely LOL! and WTF?
A funny story: In 2001, I organized the Duke Conference on the Public Domain which, in Elinor Ostrom’s words, “brought together, for the first time, an interdisciplinary group of leading scholars studying the increasing enclosure of the global information commons.” Property theory, we had in abundance. Conferences and centers and roundtables on intellectual property were (and are) legion. Our Center for the Study of the Public Domain at Duke still appears to be the exception rather than the rule. Physical commons had been extensively studied, by economists, environmentalists and historians of the enclosure movement, but also by legal scholars, who had come to some really provocative theories about the possibility of a “comedic commons.” The intellectual property lacked a theory of both the public domain and the commons. We were really clear that this was a problem in need of a solution.
Must we privatize the public domain to avoid a “tragedy of the commons,” or can the technologies of cheap copying and global networks actually make common pool management more efficient than legal monopolies? Questions such as these have thrown attention on the “other side” of intellectual property: the public domain. What does the public domain do? What is its importance, its history, its role in science, art, and in the building of the Internet? How is the public domain similar to and different from the idea of a commons? This conference, the first major meeting to focus squarely on the topic of the public domain, will try to answer some of these questions in areas ranging from the human genome to appropriationist art, from the production of scientific data to the architecture of our communications networks.
I know I am prejudiced, but I am also not alone in thinking that the collection of essays that came out of the conference is superb, essential reading for anyone who is interested in the public domain, the commons, and the open movement. I had one, non-negotiable, requirement in organizing this conference. I had to, just had to, introduce Elinor Ostrom’s ideas to intellectual property theory.
Some background: the late Elinor Ostrom (she was taken from us far too early) got a Nobel Prize eight years after our conference, in 2009, partly for her path breaking work on the commons and the way that Hardin’s “tragedy of the commons” could in fact be avoided, whether by informal norms, sub-societal customs, or even private agreements. Those of us who were working on commons theory thought that her ideas could be central to a deeper understanding of the intellectual commons as well as physical ones. Lin was resistant to this idea at first, turning me down repeatedly when I told her that she needed to turn her eyes to intellectual property. She told me she thought her work had no bearing on the intellectual space. But I am annoyingly persistent and eventually I prevailed. As I wrote twenty years ago,
In the debates over intellectual property policy, we have been familiar with a conceptual scheme that portrays “intellectual property” as a monopoly, and “the public domain,” as its conceptual opposite—a realm of vaguely defined “freedom.” In contrast, the commons literature gives us a conceptual scheme in which property, seen as a regime of individual, legal, market-based control is juxtaposed to its conceptual opposite—the well-run commons, a realm of collective, and sometimes informal, controls that avoids the tragedy of the commons without a need for single party ownership. The former juxtaposes monopolies against freedom, the latter juxtaposes individual formal controls against collective, and often informal, ones. Both give us a realm of property and a realm in which its opposite, or alternative, are offered. Despite these similarities, the two are by no means identical. Yet the two terms, public domain and commons, are often used as if they were interchangeable. One of our goals in organizing the conference was to turn Ostrom and her distinguished collaborator Charlotte Hess loose on the intellectual commons with the goal of discussing the applicability of their ideas to this new realm, and perhaps of producing a similar matrix of types of commons and strategies of management. Could environmental policy in fact provide hints for the nurture and management of the public domain? Could the commoners of intellectual space ever successfully manage their open fields of the mind without the state coming in, turfing them off, and handing the resultant package over to a single landholder? If so, under what conditions? Ostrom and Hess produced a tour de force. Focusing on the world of scholarly publishing and archives, they attempted to develop a clearer understanding of the language, methodology and outcomes of commons-based solutions.
Eventually, Elinor came to agree with me. In her words,
To direct attention to this evolving situation, James Boyle has called for the recreation of the public domain, drawing from the intellectual construct of the environment. “Like the environment,” he writes, “the public domain must be invented before it can be saved.” A greater depth of understanding of the public domain requires the concept to be more deeply analyzed and clarified. It is a logical step, therefore, to draw from the fruitful research and analytical methods applied to the study of common-pool resources (“CPRs”) and natural resource management.
Neither my article, hers, the book in which it appears, nor our subsequent work together, such as the book to which she invited me to contribute, are hard to find. A Google search will do it. If that is inconvenient, The Public Domain has an extensive discussion of the various ways in which commons thinkers influenced intellectual property and open licensing, and vice versa. (I can recommend that book because I happen to know that Paul and Alek have the physical version of it. Paul sent me a photo of himself standing next to a tower made up of 50 copies, humbling in its indication that my book’s best use might be architectural. “I love your rectilinear aesthetic!” The digital version is, of course, freely available to all.) So one can’t deny that there are hundreds of thousands, perhaps millions, of easily accessible words that demonstrate the falsity of such a caricature. This material is important if one cares about the intellectual history of commons and public domain theory. Jan is obviously unfamiliar with it, but I think some of our arguments in developing commons-theory are worth reiterating here because they have things to teach us that seem directly relevant to Paul and Alek’s essay.
[…] 5. “The commons” is generally used in the intellectual property literature to refer to material that is not subject to individual control; rather, it is controlled, if at all, by some larger group. The articles by Carol Rose, and Ostrom and Hess, in this volume, and by Larry Lessig elsewhere, show how broad and variegated a terrain this term can cover. The axis of variation here is not the “owned” versus the “free,” as it was in the discussion of the public domain. Rather, it is individual versus collective control or sometimes, more confusingly, the presence or absence of an individual right to exclude. If there is a single trend in contemporary intellectual property literature, it is to replace the ubiquitous image of Hardin’s tragic commons with the possibility of various comedic commons. Since the key to the well-run commons is frequently that it has informal systems of collective control that mitigate the inevitability of Hardin’s tragedy, those who use the term “commons” are more likely to celebrate forms of control than those who write about the public domain. The point is perhaps clearest in writing about open source software development. It is both the fact that the creativity is exercised collectively on a resource workable by all and the fact that the GPL does not allow those who modify the software to conceal the source code or to restrict reproduction that causes theorists such as Lessig to refer to this as a “commons.”
6. The various projects carried on under the banner of “the public domain” or “the commons” do not always run in parallel, any more than the various projects carried on under the banner of “nature” or “the environment.” The person who is worried about the negative effects of monopolistic control over chokepoints on innovation may well settle for a “commons” built around non-discriminatory access for a fee under liability rules or compulsory licenses. The person who wishes to encourage peer-to-peer production over a distributed network will often insist that resources need to be both free of control and free of cost. Nevertheless, both concerns and resultant definitions overlap substantially, so that it is understandable to find them conflated.
7. From my biased perspective, at least, this volume presents an extraordinarily rich range of offerings — from essays on the history of the public domain, and the types of public property, to musings on the need for a public cultural domain and a reconstructed commons of scientific and technical data. If there is a thread that links this work together it is this: Property is important. Our analytically rich and historically variegated love affair with the concept demonstrates just why it is important. Yet “the opposite of property” — its outside, its limitations, negations, inversions and correctives — is important too. If the papers in this collection can spur us to look at the opposite of property with the same historical care, analytical precision, and occasional utopian romanticism that we display when looking at property, they will have accomplished all that we could have hoped.
So, yes, we were aware of Lin Ostrom’s work and she, ours. No, we were not resistant to incorporating its insights into the world of the intellectual commons. (Actually, the resistance came from her, funnily enough.) How could we fail to think about limitations, when we were literally drafting the very first Creative Commons licenses around the same time? That’s what a license is. The people who restrict the commercial use of their work, or demand that it be used without modification, are imposing limitations on the commons. But anyone who has worked in this field knows that “therein lies the rub.” Everyone has a “use case” in their heads, the way in which they imagine their work being used. And the psychological instinct is to limit the license to that use-case. We’ll have an educational license! A license just for the global poor! An under 18 license! A no-machine-learning license! These were all real proposals, by the way. Those who have worked on open licensing will be shaking their heads, looking at the Tower of Babel of mutually incomprehensible and clashing terms that would result. Does the educational license include for-profit schools? What about training inside of companies? Whose measure of poverty gets used? What happens when you turn 18? Is a search engine spider illegal? What about fair use?
The key psychological insight that I tried to introduce to our theory was the idea of cultural agoraphobia – we are systematically better at imagining the bad stuff that can happen with open systems than the good, and as a result we overcontrol, we build in restrictions and restraints that end up both introducing license incompatibility and foreclosing uses that, had we thought of them, we would have loved. What do I care if a for-profit publisher in Nigeria translates my scientific article and reprints it there? My goal is spreading access. If profit works to achieve that goal, great! That is why, after initially getting them comfortable by experimenting with the noncommercial license, we were able to persuade the world of open access scientific publishing to default to attribution alone, with no other restrictions. The benefit? Data extraction that could lead to unprecedented scientific advances, things that save lives, is now a possibility. Some of that data extraction will be done for profit. Good.
This is what I think we place in danger when we try and load the open movement with the totality of our politics; our egalitarianism, environmentalism, antiracism, anti-poverty, privacy and so on. Not that I am against those movements. On the contrary, I am proud of contributing to all of them. But, as I tried to explain in my original article, I think that if we try and jam those ideas into the open movement, we will end up distorting both of them, with little benefit to either. I could be wrong about that, as I admitted in my article, but I think I offered some decent reasons why I might also be right.
I’ll close with a note about tone and about culture. I was struck in reading Jan’s piece by how harsh its tone is. One can firmly disagree with someone, and thoroughly criticize their logic or their research, without insultingly comparing them to a chatbot, for example. I don’t like rudeness, and I think it is counterproductive in an academic or policy setting – generally, all it does is convince your audience that collaborating with you, or even conversing with you, is likely to be more trouble than it is worth. But the point I want to make here is a different one. We have worked hard inside the open movement to try and make our discussions informed and mutually respectful. We are just as subject to Godwin’s Law as any group, of course, as anyone who has been called a “fascist” in a free software discussion can testify. But I think we have made strides, creating a culture in which we
That’s why I spent so much time talking about the – very real – contributions that Paul and Alek had made both in their essay and in their decades of work on open licensing, heaping them with entirely justified praise, leavening my criticisms with humor and admitting I could be incorrect. For their part, Paul and Alek exemplify those virtues particularly well, and I think that is one reason they have been so successful and influential. I think that a culture of mutual respect, careful research and courtesy is worth defending, because I think it will be needed in the future of our movement. We should be open, not just talk about openness.
In closing, I will add one final reason not to be rude. It is less embarrassing if it turns out you are, in addition, wrong.